1. Whether shellfishing by Wampanoag Indians, natural descendants of the original American Indian inhabitants of this region, may be subjected to a town ordinance governing recreational taking of shellfish.

2. Whether a town ordinance governing taking of shellfish may be applied to Wampanoag Indians, natural descendants of the original American Indian inhabitants of this region, in the absence of any demonstration of species endangerment requiring extreme conservation measures.

Appellants Michael Maxim and David Greene were cited on July 5, 1995, for violation of a Town of Bourne shellfishing by-law styled "Recreational Permit Regulations: Authorized Harvest Season/Days/Limits," by shellfishing on a "non-day." [citations to Addendum omitted online]

The actions were consolidated in the District Court. Maxim and Greene moved to dismiss for lack of jurisdiction, on the grounds that each of them is a Wampanoag, and a natural descendant of the original American Indian inhabitants of the region; and as such possesses an aboriginal right to take shellfish without being required to purchase a permit.

The matter was heard on May 15, 1996, with further argument on June 11, 1996. In a written Finding and Decision, the District Court denied the motion to dismiss and found Maxim and Greene guilty, on the grounds that the by-law in question is not a permit requirement, but a conservation regulation.

Final disposition occurred on October 22, 1996, when the court sentenced each to pay a fine of $50.00 (fifty). Notice of appeal was given orally at the close of the disposition hearing and in writing on November 5, 1996. Sentences were stayed pending appeal. The Record on Appeal was filed in this Court on January 3, 1997.

The right of Maxim and Greene to take shellfish in accordance with Wampanoag aboriginal right, without purchasing a permit, is not at issue. The court below has consistently acknowledged this right.

On July 5, 1995, Michael Maxim and David Greene, Wampanoag Indians and natural descendants of the original American Indian inhabitants of the region, [Transcript 49, 53-55, 66] were gathering clams by hand and rake [Transcript 16] in the area known as Little Buttermilk Bay in the Town of Bourne. Their activities were for the purpose of subsistence for themselves and their families, [Transcript 52, 69] and were carried out in accordance with customary Wampanoag cultural practices and beliefs [Transcript 55-57, 62, 69-70, 73-74] and were believed to be consistent with prior understandings and agreements reached between tribal members and legal authorities. [Transcript 52-53]

At the time of their citation by Bourne police officer Carl Merritt, Maxim and Greene had in their possession "approximately half to three quarters of a peck each of soft-shell clams." [Transcript 32]

On this same day and in this bay there were commercial fishing boats with an unknown number of individual fishermen taking soft-shell clams [Transcript 16, 25, 26] by means of hydraulic jet pumps [Transcript 16, 67-68], leaving behind uncounted numbers of dead clams [Transcript 67-68] in the process of extracting a permitted three bushels of clams per fisherman per day. [Transcript 24]

Maxim and Greene were observed by Bourne Selectman Thomas Barlow, who "was looking to see if there was any licenses on them." [Transcript 16, 22] Not seeing any licenses, Selectman Barlow initiated action by Officer Merritt [Transcript 22]. The record contains contradictory testimony as to the extent of the involvement of the selectman in the decision to issue citations to Maxim and Greene, with the officer acknowledging the involvement was "not normal procedure." [Transcript 22-23, 27-28, 32-33] Barlow testified to his personal interest in commercial shellfishing, indicating that for this reason he has "not sat (at selectman hearings) on those rules and regulations." [Transcript 16-17]

Officer Merritt "did not observe any permits" [Transcript 31] and cited Maxim and Greene for "taking shellfish without a permit," and for violation of the "Recreational Permit Regulations" permitted days schedule. [Transcript 36] The taking-without-permit citations were subsequently withdrawn by the town, consistent with previous rulings in the court below [Transcript 94-95, 99]

Selectman Barlow asserted under cross-examination that the purpose of the recreational shellfish by-law is "conservation." [Transcript 24] Barlow's assertion was not supported by any evidence, nor under further cross-examination was he able to articulate any conservation rationale for permitting commercial hydraulic jet clamming while prohibiting hand-harvesting of the same resource. Barlow's assertion was not an expert opinion; the Commonwealth specifically noted his non-expert status in this regard. [Transcript 25]

The record is devoid of any other testimony that shellfish conservation is the purpose of the by-law. No expert testimony was provided, nor any factual basis put forward to sustain the argument that the by-law in question has anything to do with conservation. The record does contain discussion of shellfish waste occasioned by legally permitted commercial shellfishing under the town by-laws. [Transcript 67-68]

The record is explicit at many points that the by-law in question, setting forth a permitted days schedule, is designed solely for "recreational" purposes. [Transcript 20-22] Maxim distinguished Wampanoag shellfishing practices from "recreational" shellfishing [Transcript 55-56], and this distinction was also testified to by Wampanoag Chief Pocknett. [Transcript 73-74]

Chief Pocknett further testified that there had been no consultation by the town with the tribe prior to the enactment of the by-law in question. [Transcript 74]

Rights to hunt, fish, and gather have been held by the Wampanoag Native American Indian people of this area from time immemorial, and remain an important aspect of Wampanoag life, providing food, service to the community, and an ingredient of cultural identity. These rights have been acknowledged in law since before the founding of the United States, recognized in treaties, statutes, and judicial decisions of the Commonwealth of Massachusetts. Appellants Michael Maxim and David Greene, Wampanoag persons, were exercising these rights at the time of their citation by officials of the Town of Bourne for violating a "recreational shellfishing" regulation. [pages 7-9]

It is established United States law that although conservation regulation of fishing is ordinarily within the police power of a state, additional burdens exist which states must bear in order to regulate American Indian fishing. Ordinary state fisheries management programs are not ipso facto applicable to Indian fishing. The Commonwealth must demonstrate that application of the Bourne regulation to Wampanoag fishing is "appropriate and essential for conservation," as specially defined in Supreme Court rulings. The tests of "appropriate and essential" require evidentiary proof specifically articulated as to a species: (1) that the viability of the species is in danger, and (2) that restriction of non-Indian fishing has been insufficient to assure survival of the species. [pages 9-11]

The Court below was in error when it upheld on an a priori basis, without any evidentiary foundation, the application of the Bourne shellfishing regulation to Wampanoag shellfishing, and when it rejected the fundamental standards set forth for state regulation of Indian fishing by the United States Supreme Court. [pages 12-13]

There is no evidence in the record that the Bourne by-laws were passed in consideration of any "specifically identified conservation measure" related to the "perpetuation of a particular run or species of fish," nor that the town "has proved unable to preserve a run by forbidding the catching of fish by other citizens." It is arguable that the town shellfishing regulations do not evince any coherent conservation purposes at all. [pages 13-14]

The record shows that the Commonwealth did not argue, let alone establish that applying "recreational" restrictions to Wampanoag shellfishing in the circumstances of this case is in any way "appropriate," "essential," or even useful for the preservation of soft-shell clams or any other species of shellfish. Without such evidence there is not even a prima facie argument for applying the shellfish regulations to Wampanoag fishing. [pages 14-16]

Rights to hunt, fish, and gather have been held by the original peoples of this area from time immemorial. These rights have been exercised by the descendants of the original peoples to the present without surcease. Shellfishing, the activity which is the subject of this case, has been engaged in by these peoples throughout this time. Shellfishing remains an important aspect of Wampanoag life, providing food, service to the community, and an ingredient of cultural identity. [Transcript 73-74] This is similar to the situation recognized as legally significant for various tribes in western Washington state in United States v. Washington, 520 F. 2d 676 (9th Cir. 1975), cert. den., 423 U.S. 1086 (1976), reh. den., 424 U.S. 978 (1976):

To this day, fishing remains an important aspect of Indian tribal life, providing food, employment, and an ingredient of cultural identity. 520 F.2d at 683.

Michael Maxim and David Greene are natural descendants of the original peoples of this area, members of the Wampanoag nation. They were engaged at all times relevant to this proceeding in shellfishing for their subsistence and the subsistence of their families. They were also engaged in the instruction of their children in Wampanoag ways and manner of subsistence shellfishing. [Transcript 52, 55-57, 62, 69-70]

Wampanoag hunting and fishing rights have been acknowledged in law since before the founding of the United States. The Treaty of Falmouth of 1726-1727 (which further ratified treaties made in Boston in 1725) between the Government of Massachusetts Province and various "Eastern Indians" is explicit:

Saving unto the Penobscot, Norridgowock and other Tribes within His Majesties province aforesaid, and their Natural Descendants respectively ... the Priviledge of Fishing, Hunting and Fowling as formerly.

This same language was repeated in the Treaty of Falmouth of 1749.

It must be appreciated that these treaties did not represent a grant of privilege from the English; rather the Indians reserved a privilege they had previously exercised. As the United States Supreme Court later put it, such treaties are

... not a grant of rights to the Indians, but a grant of rights from them -- a reservation of those not granted. United States v. Winans, 198 U.S. 371, 381 (1905)

In post-revolutionary Massachusetts, the legislature authorized towns to issue permits for taking shellfish,

Provided that nothing in this Act shall extend to deprive any native Indian of the priviledge of digging shellfish for their own consumption.... Acts of 1795, Ch. 71, sec. 5.

The right of Indians to shellfish was acknowledged again in 1836, Revised Statutes, Ch. 55, sec. 15, and again in 1933, Acts of 1933, Ch. 329, sec. 50. See also former G.L. Ch. 130, sec. 136. The 1941 revision of the General Laws omits mention of aboriginal rights. See G.L. Ch. 130, sec. 95. In 1982, the Massachusetts House of Representatives stated by Resolution that the "ancient and aboriginal claim to wildlife for sustenance ... was ignored in the revision of the General Laws, by the Acts of 1941," but that said subsistence rights have continued to be exercised after 1941 and are recognized by the Commonwealth. Resolution Recognizing and Protecting the Ancient and Aboriginal Claim of the Indians of the Commonwealth, adopted November 9, 1982.

It is important to recall the doctrine in Winans , above, that Indian rights are not a creature of government largesse. Thus, even in the absence of the 1982 House Resolution, the mere failure to mention Indian shellfishing rights in a revision of the General Laws would be insufficient to terminate those rights. It has been held that

...a termination of treaty recognized rights by subsequent legislation must be by explicit statement or be clear from the surrounding circumstances or legislative history. Lac Courte Orielles Band v. Voight, 700 F. 2d 341, 345 (7th Cir., 1983) (emphasis in original)

In 1984, the court below sustained Wampanoag hunting and fishing rights in the face of alleged violations of town permit regulations. The court held:

That the Mashpee Indians have never given up their rights to hunt and fish, and have continued to exercise those rights as did their forefathers since time immemorial.

That the right to hunt and fish by an Indian in order to sustain himself, his family, and the other members of the tribe is an essential and aboriginal right and way of life.

and

That the Commonwealth of Massachusetts has long recognized the ancient and aboriginal claim of Indians within the Commonwealth to hunt and fish for the sustenance of their families. Commonwealth v. Hendricks, et al., Barnstable District Court, Dkt. No. 84-3415, et al., Findings of Fact (October 23, 1984).

The only issue which was left unresolved as of the 1984 decision in Hendricks was the extent to which conservation regulations, as opposed to permit requirements, might apply to Wampanoag subsistence activities. As the court then said:

... the issue before me ... is not the issue as to regulations directed toward conservation. Hendricks, id.

In G.L. Ch. 130, sec. 52, the Commonwealth grants to the towns capacity to regulate shellfishing in a manner not contrary to law. The question before the Court in the current case is whether the application of a town "recreational shellfishing" regulation to Wampanoag fishing under the circumstances is contrary to law. Appellants submit that it is.

The legal standards governing application of state "conservation" measures to Indian fishing were elaborated in extensive litigation surrounding the Northwest Coast fisheries. It is now established United States law that although conservation regulation of fishing is ordinarily within the police power of a state, additional burdens exist which states must bear in order to regulate American Indian fishing. At the outset, the United States Supreme Court articulated the distinction in Puyallup Tribe v. Washington Dep't of Game (Puyallup I), 391 U.S. 392 (1968):

... the legal propriety of those kinds of conservation methods (regulating Indian fishing) is ... distinct from the federal constitutional standard concerning the scope of the police power of a state. 391 U.S. at 402, n.14.

The Supreme Court rejected Washington state's argument in Puyallup I that state regulation of Indian fishing need only meet constitutional due process and equal protection standards. The Court held that Indian fishing (and hunting)

... may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians. 391 U.S. at 398 (emphasis added)

The "appropriate standards" requirement means that the State must demonstrate that its regulation is a reasonable and necessary conservation measure, [citations omitted] and that its application to the Indians is necessary in the interest of conservation. 420 U.S. at 207. (emphasis in original)

The Commonwealth, under these rulings, must demonstrate both that the regulation at issue in the present case does not discriminate against the Wampanoag, and that its application to Wampanoag fishing is necessary for conservation.1

The definition of "necessity" for application of conservation regulations to Indians was spelled out in United States v. Washington, supra. As formulated by the district court in that case, regulation of Indian2 fishing is permissible only within a narrow definition of "conservation":

However broadly the word may be used and applied in the theory and practice of fisheries science and management, "conservation" as used in Supreme Court decisions ... is limited to those measures which are reasonable and necessary to the perpetuation of a particular run or species of fish. In this context ... "reasonable" means that a specifically identified conservation measure is appropriate to its purpose, and "necessary" means that such purpose in addition to being reasonable must be essential to conservation. 384 F. Supp. 312, 342 (1974), aff'd and rem'd, 520 F. 2d 676 (9th Cir. 1975), cert. den., 423 U.S. 1086 (1976), reh. den., 424 U.S. 978 (1976).

The Ninth Circuit, affirming this narrow definition of "conservation," noted explicitly that such state-proclaimed conservation goals as "assuring the maximum sustained harvest," and "providing for an orderly fishery" are not valid bases for restriction of Indian fishing. 520 F.2d at 686. The court held:

The necessity to limit the catch to preserve a run defines the extent to which the state may exercise police power to regulate Indian fishing. 520 F.2d at 687. (emphasis added)

The appeals court was also explicit in affirming the specially-protected position of Indian fishing, holding that the state must:

... show that the conservation objective cannot be attained by restricting only citizens other than treaty Indians. 520 F.2d at 683.

The court went on to emphasize in detail that:

The state must pursue its goals as best it can by regulating its own non-treaty Indian citizens. ... Direct regulation of treaty Indian fishing in the interests of conservation is permissible only after the state has proved unable to preserve a run by forbidding the catching of fish by other citizens under its ordinary police power jurisdiction. [citing Antoine v. Washington] 520 F.2d at 686.

The Barnstable District Court was thus in error in the cases at bar when it held "Bourne shellfish regulations to be reasonable and necessary for ... conservation ..." on the sole ground that "The authority for the Bourne shellfish regulations were adopted from Mass. Gen. L. ch 130 sec. 52. Said General law is permeated with words of control for the purpose of conservation. The town regulation could have no other interpretation than conservation." Commonwealth v. Greene, Maxim, Barnstable District Court, Case No. 9525CR8157 & 9525CR8158, Finding and Decision 4 Such a priori reasoning, unsupported by any evidentiary foundation, does not meet the requirements established by the Supreme Court for state restriction of Indian fishing in the name of conservation.

The existence of a valid "conservation" basis for regulation of Indian fishing is a matter for proof at trial, not to be decided in an a priori manner. The burden of proof in such matters rests on the Commonwealth, and cannot be borne by reference to statutory titles or definitions.3

The court below was also in error when it rejected Maxim's and Greene's argument that "preservation of a run or species" is the only valid basis for state regulation of Indian fishing4. The court stated:

The defendants ... argue that only when the species is endangered to the point of extinction would they be subject to non-Indian conservation regulations. This Court does not extend the aboriginal rights to such a degree." Finding and Decision 3.

Yet it is precisely such species endangerment which the Supreme Court has established as the indicator that state regulation may extend to Indian fishing:

Rights can be controlled by the need to conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. Dep't of Game v. Puyallup Tribe (Puyallup II), 414 U.S. 44, 49 (1973). (emphasis added)

Not all "conservation" purposes are sufficient to sustain a state restriction of Indian fishing. The Commonwealth must prove that preservation of the species in question is the purpose of the regulation it wishes to enforce, and that this purpose cannot be satisfied by restriction of non-Indian fishing. As will be discussed below, the record in this case is devoid of any such proof.

Regulation of "recreational" or "sport" hunting and fishing is within the ordinary police powers of the state. Regulation of Indian subsistence hunting and fishing requires substantially more than ordinary justifications for state action.

The by-law under which Maxim and Greene were cited is styled a "recreational permit regulation." On its face, the by-law is inapplicable in the context of this case. Maxim and Greene were not engaged in "recreational shellfishing." Maxim testified that the purpose of his fishing was "a matter of survival." [Transcript 56] Greene testified that he was fishing "to get a meal for my family." [Transcript 69] This testimony, unchallenged by the Commonwealth, underscores the difference between "recreational" and subsistence food-gathering activities. "Recreational" hunting and fishing is engaged in as a "sport." Subsistence hunting and fishing are engaged in for sustaining life, for survival. This distinction was also the subject of Wampanoag Chief Pocknett's uncontradicted testimony. [Transcript 73-74]

The Bourne shellfish regulations appear on their face to be a routine measure for collection of revenue from and regulation of recreational shellfishing. The regulations do not demonstrate species endangerment such as might provide for a restriction of Wampanoag shellfishing under applicable law, nor indicate that any species is in need of any protection at all.

There was no testimony and there is no evidence in the record that the Bourne by-laws were passed in consideration of any "specifically identified conservation measure" related to the "perpetuation of a particular run or species of fish," nor that the town "has proved unable to preserve a run by forbidding the catching of fish by other citizens." U.S. v. Washington, 384 F. Supp., supra.

It is arguable that the town shellfishing regulations do not evince any coherent conservation purposes at all. For example, the number of commercial permits (with authorization to use hydraulic "jet pumps") is unlimited. Any resident of the town may acquire a commercial permit, and as many as four permit holders may operate from a single boat to take substantial quantities (measured in bushels) five days a week. See Bourne Town Shellfish Regulations, Section V. Far from being "appropriate" and "essential" in a narrow definition of "conservation," these by-laws appear to be unreasonable, if not irrational, under the broadest definition.

Selectman Thomas Barlow, testifying for the Commonwealth, said that he observed Maxim and Greene harvesting clams by hand and with a rake while at the same time and in the same area there were commercial boats harvesting with "jet pump" equipment. [Transcript 16] Officer Merritt testified that Maxim and Greene each had in his possession about one-half to three-quarters of a peck of clams, in wire baskets. [Transcript 32]

Surely if there were a bona fide concern for the extinction of soft-shell clams in Little Buttermilk Bay, the town would address such invasive technologies as the "jet pump" before it regulated hand harvesting. In any event, whether or not the town would do so, the law requires such an approach, as discussed above:

Direct regulation of treaty Indian fishing in the interests of conservation is permissible only after the state has proved unable to preserve a run by forbidding the catching of fish by other citizens under its ordinary police power jurisdiction. 520 F.2d at 686.

The record shows that the Commonwealth did not argue, let alone establish that applying "recreational" restrictions to Wampanoag shellfishing in the circumstances of this case is in any way "appropriate," "essential," or even useful for the preservation of soft-shell clams or any other species of shellfish. Selectman Barlow's bare assertion under cross examination that "conservation" is the purpose of the by-law is the sole reference to "conservation" in the entire testimony of the Commonwealth's witnesses. [Transcript 24] This is precisely the type of prosecutorial defect described in Antoine, supra:

The State of Washington has not argued, let alone established, that applying the ban on out-of-season hunting of deer by the Indians on the land in question is in any way necessary or even useful for the conservation of deer. 420 U.S. at 207.

In a similar vein, the District Court in U.S. v. Washington noted:

With a single possible exception testified to by a highly interested witness ... and not otherwise substantiated, ... neither Game nor Fisheries has discovered and produced any credible evidence showing any instance, remote or recent, when a definitely identified member of any plaintiff tribe exercised his ... treaty rights by any conduct or means detrimental to the perpetuation of any species of anadromous fish. 384 F. Supp 312, 338, n.26 (1974).5

The record shows that the Commonwealth's case, like the Bourne regulations themselves, is devoid of any evidence as to the needs of any particular species and as to any methods of species study or perpetuation. Without such evidence there is not even a prima facie argument for applying the shellfish regulations to Wampanoag fishing.

There is, in short, no valid basis for application of the by-law in question to Wampanoag shellfishing. The Commonwealth has not shown the regulation to be essential to conservation under the relevant criteria discussed above. To the contrary, a Resolution passed by the Massachusetts House of Representatives recognizing the precise right at issue specifically states that aboriginal shellfishing for the sustenance of Indians' families "does not interfere with the proper management of natural resources by the Commonwealth...". Resolution Recognizing and Protecting the Ancient and Aboriginal Claim of the Indians of the Commonwealth (November 9, 1982).

The Commonwealth would have to provide a much fuller record and substantial evidence of species endangerment necessitating restriction of Wampanoag fishing to overcome the hurdles established by the United States Supreme Court. Compare the passing reference to "conservation" in the record below with the "two-week trial ... dominated by expert testimony" from which the trial court in Puyallup III "determined the number of steelhead in the river and how many could be taken without diminishing the number in future years.," as to which the Supreme Court said, "This is precisely what we mandated...." Puyallup v. Dept. of Game (Puyallup III), 433 U.S. 165, 177 (1977) .

Controlling law denies the Commonwealth a general power to restrict Indian fishing. In the absence of any evidence that a species is in need of preservation and that such need is so great that it persists even after all other harvesting has been restricted, the Commonwealth may not restrict Wampanoag fishing. As to all other more general conservation measures, enforcement by the Commonwealth is conditioned on negotiation and consultation with the Wampanoag. As the appeals court in United States v. Washington, supra, stated:

The state's program for management of the state's fisheries may appear sound and commendable, but the state shares its rights in those fisheries with another party. It may not force treaty Indians to yield their own protected interests in order to promote the welfare of the state's other citizens. The state may secure treaty Indians' compliance with these regulations only by gaining their acquiescence in its goals. [citing Antoine v. Washington] 520 F.2d at 686.

In a situation where court-supervised allocation of fisheries was mandated, the Supreme Court held:

The state courts must continue to accord full respect to the Tribe's right to participate in the proceedings on behalf of its members.... Puyallup v. Dept. of Game (Puyallup III), supra, 433 U.S. at 178

.

It is to be noted in this regard that the Executive Department of the Commonwealth has issued a general mandate for consultation with the Mashpee Wampanoag Tribal Council on matters of concern to the tribe:

State agencies shall deal directly with the Mashpee Wampanoag Indian Tribal Council on matters affecting the Mashpee Tribe.... Massachusetts Native Americans, Executive Order No. 126 (July 8, 1976), Section I

.

No consultation with the Wampanoag has occurred in the promulgation of the Bourne regulation sought to be applied in the instant actions.6 [Transcript 74]

The Wampanoag people have been living in this area from time immemorial. They have depended upon the seasons and the fruit of the earth for their survival, as an integral part of their culture. Conservation of natural resources -- of life-forms upon which the survival of the people is dependent -- is an inherent aspect of their spiritual relationship to the earth. In all these years, Wampanoag subsistence has occurred in balance with the natural cycles of animals and plants. The harvesting of clams for subsistence as families and as a community is essential to the Wampanoag way of life.

The Town of Bourne shellfish regulatory scheme usurps the right of members of the Wampanoag Tribe to exercise their recognized aboriginal shellfishing rights. There has been no demonstration that Wampanoag survival is a threat to the perpetuation of any species of shellfish. It stretches the imagination beyond credibility to think that any definition of "conservation" would permit extensive and invasive "jet pump" harvesting of shellfish while restricting manual harvesting. The Commonwealth simply has not demonstrated any basis as required by law to apply its "recreational" shellfishing regulations in the circumstances of this case.

Michael Maxim and David Greene, natural descendants of the native inhabitants of this area and members of the Mashpee Wampanoag Tribe of Indians, possess and exercise aboriginal rights to take shellfish without permission from the Commonwealth or any town. These rights have been recognized by the Commonwealth and the court below. The law holds these rights free from state interference except in limited, strictly circumscribed circumstances which have not been demonstrated by the Commonwealth. The shellfish regulations at issue do not meet the conditions for regulation of Indian usufruct rights set forth in controlling United States Supreme Court cases.

1 The issue of "discrimination" was apparently argued in a magistrate hearing related to the cases at bar. In its decision after that hearing, the court noted that Greene, appearing pro se, had raised an issue of "discriminatory practice of conservation procedure and suggested that the policy of the town was flawed." The court went on to hold that "... this particular issue is not relevant to the matter before me as I do not view the separate treatment of commercial permit restrictions contrasted with family permit restrictions as rising to a level of constitutional discrimination...." Town of Barnstable vs. David S. Greene, Barnstable District Court, Decision After Hearing, G2 and B-147 (October 25, 1995), 3-4. Maxim and Greene here challenge the "necessity," as defined by law of the application of the by-law to them.

2 In order to distinguish Indian from non-Indian fishermen the court required the former to carry identification issued by the tribe. Both Maxim and Greene carried and displayed this type of card, authorized by the Mashpee Tribe. [Transcript 49, 53, 66]

3 With due respect for the opinion of Lord Mildrew, that "If Parliament does not mean what it says it must say so," cited by the court below as authority for its conclusion, Finding and Decision, Id., neither the Commonwealth nor the Town of Bourne possesses the authority of an English Parliament. Indeed, the matter is quite opposite: here, the government must prove that what it says is borne out by evidence.

4 The Finding and Decision at other points misstates the argument advanced at trial, saying that "The defendants' position is that aboriginal rights to fish cannot be restricted in any manner or by any regulation"; and that "By permitting the Indian by virtue of his belief to become a complete and absolute law unto himself contradicts constitutional traditions." Finding and Decision 3, 4. Maxim and Greene have not disputed the power of the Commonwealth to enforce appropriate and necessary conservation measures, as these are defined by law.

5 The record below shows clear evidence of Selectman Barlow's interest in the subject-matter of this prosecution. "Normally selectmen have a public hearing each year, and rules and regulations are done on a yearly basis. I personally have not sat on those rules and regulations because I'm a commercial shell-fishermen (sic) formerly. My brother is a commercial shell-fisherman. My father was a commercial shell-fisherman for 60 years. I've been involved in commercial shell-fishing my entire life." [Transcript 16-17]

The situation in which the Wampanoag find themselves may, perhaps, be likened to that prevailing in Washington state during the crisis years of Indian fishing litigation: "The record in this case, and the history set forth in the Puyallup and Antoine cases, among others, make it crystal clear that it has been recalcitrance of Washington State officials (and their vocal non-Indian commercial and sports fishing allies) which produced the denial of Indian rights requiring intervention by the district court. This responsibility should neither escape notice nor be forgotten." U.S. v. Washington, 520 F.2d. at 693 (Burns, concurring). The record in the Wampanoag cases also shows evidence of official "recalcitrance" in the face of continuing judicial acknowledgment of Wampanoag rights. [Transcript 26-28, 37-40, 52-53, 73,
94, 99]

6 The lack of consultation notwithstanding, the Mashpee Tribe has formulated a Tribal Hunting and Fishing Code.